Aaron Freiwald: [00:00:00.36] Welcome back to Good Law Bad Law. Can the president's statements about Muslims and about Islam his rhetoric which many regard as anti-Muslim and anti-Islam be separated from what may be valid national security concerns about immigrants to this country. That's the subject of a very important Supreme Court case that was decided just a few months ago. And that is the subject of today's episode. My guest Professor Sahar Aziz a professor of law and social justice and Middle East Studies at the Rutgers University Law School and the founding director of the Rutgers Center for Security Race and Rights. We talk about the impact of anti-Muslim rhetoric, Islamophobia growing in prominence since 9/11 and during the campaign for president in 2016. And out of the mouth of this president in ways that we haven't heard in a very long time in this country. What is the impact of this important Supreme Court case? How did the court try to wrestle with these issues and how as a country do we deal with anti-Islam sentiment today? Professor Aziz and I discussed these and other issues. Stay tuned for a fascinating episode.

Aaron Freiwald: [00:01:37.17] My guest today on Good Law bad Law is Sahar Aziz. She's the professor of law and Chancellors Social Justice Scholar and Middle East studies director at the Rutgers University Law School in New Jersey. And she's also the founding director of the Rutgers Center for Security Race and Rights. So Professor Aziz Sahar thank you so much for being on the program today.

Sahar Aziz: [00:02:02.79] Thank you for inviting me.

Aaron Freiwald: [00:02:04.35] We're going to tackle such an extremely important subject and one that you know touches on so many aspects of what we're dealing with in today's politics and in today's life and social life from immigration to civil rights to discrimination to politics and just how we live as Americans in this country. Sahar we're going to talk about as a jumping off point into the question of how Muslims in America, Muslim Americans, are treated and how our country regards Muslim immigration. We're going to look in some detail at the Supreme Court's decision last summer. I think now really paid very little attention to relative to its importance. The case involving what some call President Trump's Muslim ban revised for political digestion as the travel ban and how the Supreme Court handled the issues that were raised in that case and then we'll jump from there into some broader themes that I know Sahar you're exploring not only in your work and your teachings but also in a book you have coming out next year so I want to get to all of that. But first if you wouldn't mind Sahar, give us a little bit of background into yourself and your path to this whole topic and area of research and study.

Sahar Aziz: [00:03:42.93] Well thank you so much again for inviting me. In many ways the work that I do is both personal and professional and there's a saying in the critical legal studies that the personal is political and the political is personal. And many of us who teach law and teach the next generation of law students fit into that category. So as someone who self identifies as a Muslim American and Egyptian American. What happened on September 11, 2001 the terrorist attacks against the United States by 19 individuals criminals hijackers and murderers who claim to be Muslim men, who claim to do this in the name of Islam, first was rejected by those of us who adhere to that faith. But also resulted in the collective punishment of between six to eight million people in the United States who self identify as Muslims. And it was a paradigm shift in terms of the way that these very diverse communities diverse racially and ethnically and class wise as well. The paradigm shift in the way that they were treated by the government, by their neighbors, by their teachers, by their coworkers, where suddenly they were guilty of this horrendous crime. Notwithstanding that they didn't know these individuals and they certainly rejected what had just happened and condemned it. And as a result for the past 18 years and the Muslim ban is the latest iteration of this 18 years and going phenomena of what I call post 9/11 discrimination and also the ultimately the racialization of Muslims is that these communities have been experiencing multiple forms of discrimination and unfortunately it isn't simply by fringe factors it is not simply by radical extremists on the right or on the left but it has become mainstream primarily because the government has legitimized it. And so these various myriad forms of subordination a term of art in a critical race theory prompted me and many others who, some of whom belong to these communities and have family and friends and have even personally been adversely harmed by these anti-Muslim stereotypes as some who didn't who had nothing to do with the communities but saw this phenomenon as post 9/11 discrimination phenomena as an attack or an affront on American values of Racial Equality religious freedom and equal opportunity. So what brought me to this area was personally in the beginning I happened to be a 1L at the University of Texas when the 9/11 attacks happened. And that ultimately caused me to work for the ACLU and then to do pro bono work on behalf of many of these Muslim groups ultimately becoming out for civil rights litigator and I was fortunate to transition then my interests and expertise and advocacy experience into the academy. Where I now write on issues at the intersection of national security and civil rights with a particular focus on the disproportionate adverse impacts on Muslims Arab and South Asian Communities in the United States. And then related to that I also research on geopolitics between the Middle East and the United States and counterterrorism authoritarianism in the rule of law because as we see in the Muslim ban case what happens abroad is frequently used to justify discrimination domestically against these communities so you can't really understand what happens here without understanding that relationship with what happens in the Middle East and the U.S.'s foreign policy in that region. So that's what I do and that in a nutshell. And so the Hawaii the Trump case was certainly squarely within my wheelhouse.

Aaron Freiwald: [00:07:58.49] Well and we're going to get into the details of the case so that we can explore some of the ways in which it illuminates the experience for Muslim Americans. And the issues you've raised so far. But you know it's so much bigger than that. And it is already so much broader than that I mean much more recently even than the Muslim ban this travel ban that the president was so committed to as a priority of his agenda was the first really the first big issue he took on after taking office. But using these issues in the way his rhetoric and the way he talks about these issues in the politics of our time we've seen it even more recently in the way in which... in the lead up to the midterm elections that we just had in this country the president talking about this caravan of migrants making their way across Mexico from Central America as he put it probably had some Middle East terrorists among their numbers you know something that was never proven and there was no evidence to support but nonetheless probably touched on some important nerves in some of the people he was trying to appeal to. So it's something that you know we've seen very recently in the big stage of politics in this country.

Sahar Aziz: [00:09:30.63] Absolutely it's very acceptable until now to hold explicitly anti-Muslim views at least in terms of associating Islam and Middle Easterners with terrorism in ways that if you did that to other religious communities would be quickly condemned as anti-Semitic, anti-Christian, anti-religion particularly anti-religious freedom and outright racist. And I think that's the challenge of our time among you know there are some other key civil rights issues. For example, those experienced by the LGBT community. But I think anti-Muslim bias, what some people call Islamophobia is today similar to anti-Semitism in the early nineteen hundreds when it was accepted or anti-Irish prejudice which also had anti-Catholicism kind of embedded in not where an anti-Japanese also bias where it was open, it was explicit. We look back on it in repulsion. Well we have to acknowledge that was considered normal. And the question or challenge for us today especially those of us who prioritize civil rights as a fundamental American value is are we repeating the mistakes of the past. And if we are have we evolved as a society in terms of our commitment to pluralism and equality.

Aaron Freiwald: [00:11:01.66] Well and you're right that 9/11 and the attacks of 9/11 have to have changed things because you know Europe has experienced war, the Middle East has experienced war, Asia has experienced war. But our country that we've been involved in war never really experienced an attack on our people, on our country on our soil until then. We had a big civil war in this country but we didn't. You know it's been a lot of years since the United States was attacked in that way. And that is recent enough in our time that people have still very fresh and deep and emotional responses to the way they think about it. And I think one of the things that already you're helping us focus on is the fact that probably very few people think about the way a Muslim American experienced that. That event. And what that's meant in the way we all get used to the rhetoric the war on terror and all the you know ways that our politicians and leaders have talked about it but probably very few of us have thought about that experience from the Muslim American perspective.

Sahar Aziz: [00:12:29.65] I agree with you I just want to make one comment is that unfortunately many of us in the beginning thought who had been working on these issues thought it was merely a backlash that it was this instinctive visceral response to this horrendous attack on quote unquote the homeland and that it would last a year or two maximum and then Americans would realize that being collectively punishing and suspecting millions of people simply by virtue of their religious faith was un-American. However, one that's proven not to be the case...from an evidentiary perspective. But also we do need to acknowledge that you know... anti-Japanese bias that led to internment. Yes that was based on the attack the Pearl Harbor attack but we didn't have a war in the United States. Similarly the anti-trainees exclusion, the anti-Semitism the anti-Irish biases, anti-black racism. It wasn't connected to being attacked and going to war on our own soil. I just want us to be careful in not attributing it to a particular event that was very traumatic that caused us as Americans to be more introspective and ask ourselves can we overcome our historical sin for lack of a better word whether it's slavery, or the conquering near annihilation of Native Americans, xenophobia et cetera which is as much a part of this country's history as social mobility, economic opportunity, equal attempt for equal opportunity in the economic and political reasons that caused and have caused tens of millions... actually hundreds of millions of people to immigrate here from across the world and they continue to do so. So America has many attractions but I think the 9/11 attacks and the aftermath an opportunity for us to look at our history and really try to not repeat it and understand that within the history there are some very checkered past with regard to how we treat minorities.

Aaron Freiwald: [00:14:48.95] Well and that case of the Japanese internment really concentration camps for Japanese Americans in this country after the attack on Pearl Harbor in 1941 is actually mentioned and discussed a bit in the Muslim ban the travel ban opinion which we're going to talk about that next. So it's definitely something that was on the mind of the Supreme Court justices on both sides. The majority in the dissenting justices. The rhetoric of anti-discrimination the rhetoric of anti-Muslim views, prejudice, fear, hatred among some also then gets wrapped up in the immigration issue more broadly. And Donald Trump really exploited that very, very heavily during the presidential campaign and has continued to really with his words since becoming president. Can you give us the the setup for this dispute? It's complicated and we'd probably need three hours to go through every detail of it but I want to try to get enough introduced about the issue so that we can understand how the Supreme Court resolved this eventually and then try to understand what its impact has been. But if you could give us a bit of a summary of it that would be helpful.

Sahar Aziz: [00:16:28.82] Well President Trump strategically and purposely issued an executive order. I believe it was within a week of when he was inaugurated one or two weeks at the end of January that we now call the Muslim ban. And I can explain more why I called the Muslim ban as opposed to the facially neutral travel ban title wherein he prohibited the entry of any non-U.S. citizen who originated from seven countries. So you had Libya, Iraq, Iran, Somalia, Sudan, Syria and Yemen. And as we saw in the news it created havoc because as soon as it was issued millions... well hundreds of thousands of people were coming from all of these different countries some of whom actually who didn't live in those countries but their passports were from those countries so they could be coming from Europe or from other parts of the world but their nationality was of these countries and suddenly they were in transit and they were about to leave where they had just arrived in the United States and suddenly they were denied entry into the country and detained in airports across the country which created havoc from a travel perspective but also harm to their families and harm to them. And much anxiety. And we saw the quite impressive array of protests that occurred across the country by many Americans the various races, ethnicities and religion is not just Muslims or those who have some tie to these countries right who were protesting not only the content but the means in which he did it. It was sudden. It was without any review by his Cabinet any study by national security officials. It was this unilateral executive decision that came out just a few days after he took office and it had been something that clearly he and Steve Bannon had planned and Steve Bannon is known and infamous he doesn't hide it that he is a far right extremist who is openly Islamophobic and suspects all Muslims of terrorism and has explicitly stated he wants to stop and halt all immigration or entry of people of the Muslim faith and Steve Bannon as we know is one of Trump's top advisers in the White House in the first few months of his administration.

Aaron Freiwald: [00:19:12.49] Right.

Sahar Aziz: [00:19:13.55] So that was the first executive order and as expected, this slew of litigation rose and the various courts with the exception I believe of a court a district court in Boston and one perhaps I believe in Virginia that every other court issued a stay on the executive order because they believe based on the expectation that the parties the plaintiffs would win on the merits once they were able to get further into the litigation that caused Trump to then issue a second executive order where he took Iraq off the list and he changed a few minor things. But again that was subjected to litigation and that also and that went up to the Ninth Circuit and the 4th Circuit where both circuit again affirmed the stays and found that these the plaintiffs would win on the merits once you got to that stage in the litigation. And so finally then Trump issues a third one which is the one that is before the Supreme Court in 2017. And what's notable about this one at least from the government's perspective each time he's trying to remedy the basis for challenging the executive order and the primary basis is one this is not based on national security grounds. This is driven by anti-Muslim animus which is unconstitutional.

Aaron Freiwald: [00:20:48.67] Under the first amendment

Sahar Aziz: [00:20:51.01] It's also a violation of the Establishment Clause. It's also a violation of the INA Immigration Nationality Act in particular, the nondiscrimination clauses in terms of how visas are issued. And his claim that he's authorized to do so based on Section 1182 F of the INA that allows the president to engage in immigration enforcement on if he claims if he can show that there is a detriment to U.S. national interests.

Aaron Freiwald: [00:21:27.67] Right.

Sahar Aziz: [00:21:28.53] Which is very broad and very vague. And so that's what brought that to Executive Order Number Three which is before the Hawaii excuse me before the Supreme Court.

Aaron Freiwald: [00:21:38.17] So let me let me just back up to clarify a couple of things. First of all the I want to understand what these so you know what these bans really were getting at. And what they weren't getting a look because I think there's some confusion about this. First of all this did this had nothing to do at least directly with refugees. Right? That was that's a whole separate set of issues whether you know what basis the president might have for limiting the number of refugees or how asylum seekers you know how those claims get handled this was really a limit or ban and then a limit on people seeking a visa to come to this country on some basis or another might be a temporary work visa, might be a student visa. It might be a visa to come to this country with the intent actually to immigrate here. And one day become a citizen. But a whole range of visas rather than refugee or asylum seekers. Is that right?

Sahar Aziz: [00:22:39.5] The first version barred all refugees from Syria and then created an exception for those who were claiming religious discrimination. That was effectively code for Christian Syrians.

Aaron Freiwald: [00:22:57.96] Right.

Sahar Aziz: [00:22:58.59] He and Trump had made comments clarifying that that's what he meant by making it a religious discrimination or religious persecution exemption for Christian excuse me for Syrian refugees. And now one thing the government emphasized these were only temporary bans. It was 90 days until they could do a review but they had done no due diligence. They hadn't even told the Department of Homeland Security the White House. Trump and his advisers that they were issuing this executive order so the executive branch got caught flat footed. Many of the agencies were blindsided. So the original one yet did include Syrian refugees. And then later he removed the exemption because that was a blatant violation of the Establishment Clause at. But ultimately there is still a limitation on the refugee entry particularly from Syria.

Aaron Freiwald: [00:23:56.99] Right. So as he goes through the different versions of this plan he's trying to deal with the things that are going to really cause it to run into direct conflict with the First Amendment with the establishment. So in the first version the one that came out just after he becomes president he's essentially got an exception for Christians from Syria. So Muslims from Syria stay out but Christians you can come in and that's just seen as so blatantly a violation of the First Amendment that had to go. And until you get to this final version and I guess that's then the question right. That the Supreme Court has to wrestle with because in addition to some of the more overt provisions in the first version of this you also have all of the president's statements about what this was going to be. He really made no secret of that when he was on the campaign trail he said I'm going to ban Muslims. "I'm going to make sure no Muslims come to this country when I'm president." So and then when he does come out with this initial executive order at least in the popular understanding of it it's kind of hard not to see it as anything other than what he said it would be and that poses some real problems for the court when it has to get down to the business of analyzing exactly what it is. The Supreme Court is being confronted with. So how did that how does the court handle that then?

Sahar Aziz: [00:25:32.52] So the dissent from Sotomayor and she was joined by Ginsburg is the most stinging dissent. There's there's two sets of defense one's by Breyer and Kagan and the other one's by Sotomayor and Ginsburg. And Sotomayor I think does a good job of putting the records or setting the record straight saying here is what the president said in the two years directly leading up to the first executive order. And remember each executive order is related to the previous one. So it's a bit disingenuous for Trump to pretend as if the third executive order should be looked at independently separately from the first one which the evidence shows is the one that most accurately expresses what the White House's motivation was. Notwithstanding the various ways that his administration tried to remedy the infected animus behind the first order and so I'll just read something from Sotomayor's decision her dissent quote 'In January 2016 during a Republican primary debate Trump was asked whether he wanted to rethink his position on banning Muslims from entering the country. He answered No. A month later at a rally in South Carolina Trump told a powerful story about United States General John J. Pershing killing a large group of Muslim insurgents in the Philippines with bullets dipped in pig's blood in the early nineteen hundreds. In March 2016 he expressed his belief that Islam hates us. We can't allow people coming into this country of this hatred of the United States and people that are not Muslim. That same month Trump asserted that we're having problems of the Muslims and having problems of Muslims coming into this country he therefore called for the surveillance of mosques in the United States banning terrorist attacks on Muslims lack of assimilation and their commitment to Sharia law. A day later he opined that Muslims do not respect us at all and don't respect a lot of the things that are happening now not only in our country but they don't respect other things.' So that's a direct quote from Sotomayor's dissenting decision and she goes on and on essentially just quoting Trump right.

Aaron Freiwald: [00:27:44.23] And there's so much more than that. I mean I read that part too. And not only those and many other statements he made he actually invoked at one point in a speech, the decision by President Roosevelt to inter Japanese Americans he actually invoked that as precedent. One of the most reviled moments in our country's history, one of the most reviled Supreme Court decisions to that upheld FDR's interning of Japanese Americans. He actually invoked that in support of what he was doing so there's a lot of... there's a huge record of Trump doing this. But I guess the question is and the question was answered by the majority under Chief Justice Roberts that you know you can look at what the law is and separate it from the intention of the law maker or the you know the creator of this law the motivator instigator of this law in this case the president. And I mean I would assume that you take issue with that... that you cannot do that, that you cannot separate the intention from these other bases for these restrictions.

Sahar Aziz: [00:29:09.17] What the court did, what Roberts wrote the decision and it was a 5 4 decision. And actually it was there was a concurring opinion by Thomas and I believe by Stevens. But the what he did is interesting, he acknowledged that in this case quote unquote extrinsic evidence can be looked at to determine what the intent behind the third executive ban is. But that extrinsic evidence does not suffice to overcome the rational basis. So he applied the rational basis test which many of us legal scholars and lawyers know usually means that the government's claim is going to succeed or their position is going to be successful and argues that whatever it is that Trump said was in the past and that what we should be looking at is what he did in the 50 days prior to his third executive order and what his administration did is effectively go through this process which was clearly not a genuine process. It was just remedial because they had been sued and they lost their cases in the 9th and the 4th Circuit for the states challenging the stay of the executive order. And they went through the script of checking to see if all of these countries have followed all the proper vetting procedures and whether they in fact checked all the boxes that the United States required for them in terms of making sure that they weren't associated with terrorists and that they weren't... wouldn't be a danger to the United States if they entered. The problem with that argument is that it happened right before the executive order. Number three it didn't happen for example before Executive Order Number one there were many inconsistencies for example Somalia which the government admitted had the most stringent form of passport control to ensure there was no fraud and ensure that people couldn't get through fall through the cracks. And yet Somalia was included because they claimed there's a conflict in that region. And of course if we were to accept that policy I mean anytime there's a war we shouldn't let anyone in which had some humanity that has a catastrophic humanitarian impact on refugees and even lawful immigrants, immigrant and nonimmigrant visas. So what we saw is that the court kind of acknowledged or acknowledged what Trump said but didn't take it seriously. In so far as reversing going so far as yet reversing or striking down the executive order or affirming the stay.

Aaron Freiwald: [00:32:10.19] Right it seems like the because the court in looking at the law that gives the president the right to regulate immigration if it involves really reducing it down to the most simplest terms. But if the president can justify a limit on immigration for national security reasons and can articulate a basis that's the rational basis test you were referring to earlier as long as the government comes up with any reasonable rational basis. The court is going to give deference to that. It's going to give deference to the executive authority under that law. I mean Congress could always come along and pass a different law if they could get together and agree on anything they could, they could always come along and pass a new law. But the law as invoked and as written the courts in this case deferring to the administration which comes up with some kind of basis you know they say well these are countries that are state sponsors of terrorism. These are countries that include this is in the final version of this non-Muslim countries. North Korea is on the list. Venezuela is on the list. So they you know those countries are included and that supports at least on its face supports an argument that this isn't an entirely anti-Muslim policy. And they say these are countries that can't give us assurances of you know being able to identify that a certain person is who their passport says they are. And we've offered them an opportunity to improve their measures and they haven't. I mean those are the justifications for the policy on the one hand and the court just seems to say I'm going to defer to that executive authority given those reasons and I'm going to ignore all of what is out there about what the president said this was going to be.

Sahar Aziz: [00:34:24.7] Correct. And to be fair to the majority but for the large record of anti-Muslim animus that Trump has produced and created a case involving national security and immigration is precisely the type of case that gets the highest level of judicial deference to the executive. And in that regard the reasoning isn't unusual. It's the application of the reasoning and the I think incorrect interpretation of the record that shows that I think even from a rational basis test it would fail because Trump has created such a large record. He doesn't hide his bias. One thing I wanted to highlight is the government usually will cite a case called Kleindienst v. Mandel which is involved a Belgian journalist and self-described revolutionary Marxist who'd been invited to speak at a conference in Stanford. This is back in the 60s. And the court, the government denied his visas and denied his entry and there was a first amendment challenge of that denial. And the court in that case which is kind of the seminal case cited I think is in the 70s that says the judiciary does not have the authority to look behind the motive of an executive act so long as a that it is a facially legitimate and bonafide reason for its action. And so in that regard that case in particular has caused many plaintiffs who challenge executive action in the national security realm or in the Foreign Affairs realm to lose. So what I think is interesting about the majority opinion is that Roberts actually acknowledged that Mandel doesn't apply here because the facially legitimate and bonafide reason of the Trump administration was not in fact that. Because the record was so strong that he held animus but then he turned around and dismissed that evidence and weighing it against what happened only in the last 50 days before the third executive order was issued saying this shows that in fact there is a rational basis they're really just trying to prevent terrorists from entering the country. This is just a travel ban aimed at preserving national security. And so if we weigh the last two and a half years over the last 60 days or 50 days we think what happened most recently is the true motivation behind the executive order. And as a result this is not a violation of the Establishment Clause nor is it an un-authorizing the invocation of a 1182-f in terms of saying this is really executives claim that allowing these individuals in or people from these countries in would be a detriment to the United States. And also the majority distinguished which I think many immigration lawyers took issue with is distinguished between entry and visa issuance because 1152 A1A of the Immigration Nationality Act prohibits non-discrimination and issuance of immigration visas. So doesn't apply to non-immigrant visas but it does apply to immigrant visas. And so the argument from the plaintiffs was well by denying these people entry categorically and they're all from a Muslim majority country and we already know that you have tried to exempt Christians at least with refugees that you are discriminating based on religion, based on race, based on unlawful grounds when the court the majority opinion said no there's a difference in entry or admissibility and issuance of visas but of course the two go hand in hand. So there are a lot of flaws in the reasoning it seemed like a predetermined outcome. I think the majority was trying to find any way he could to follow in the tradition of giving judicial deference to the executive when it comes to national security and immigration. And I think ultimately that's going to be the long lasting impact of this case is that now presidents can be as racist as phobic you know against a particular religion or a particular race as they want in their rhetoric. And even in their practices as long as they just go through the motions and have some alternative pre textual explanation is based on national security or immigration enforcement grounds and everybody can wink wink nod nod and play along. And ultimately this undermines the rule of law in the United States and it undermines the legitimacy of the executive branch and even the judicial branch.

Aaron Freiwald: [00:39:29.81] Well that's... I was wondering. And then we have to broaden out from just the circumstances of this case for a few minutes. But if we can imagine and this is asking a lot of our imaginations I know. But if we could imagine this same set of circumstances but without all of the many statements the president made before he became president and since because you know there are a lot of people out there who may say I like what Trump is doing I just don't like what he's saying. And they they find ways to look past some of the dumber or more offensive things that he says depending. So I mean can we imagine a situation where if we remove from the record and from all of our memories the things that he said and just looked at this last iteration of this effort to deal with these issues of people coming from countries not only Iran and Syria and Yemen but but places like North Korea and other places would there have been an issue here. I mean would there have still been the sense that this was anti-Muslim. I found this fascinating the president's on 43 prior occasions 43 times before this had for one reason or another issued some type of immigrant restrictions even going so far as to identify an entire country's population in the case of Cuba during Reagan's presidency and Iran during the presidency of Jimmy Carter. So if we could take away this rhetoric and these statements how would you look at this differently or would you look at this the same way I guess.

Sahar Aziz: [00:41:26.78] I think with regard to if you look at the countries of Yemen, Venezuela, Chad, Iran, Iraq, Libya, North Korea, Syria he then later removed the Trump administration removed Chad and Iraq was also removed excuse me Somalia is also on there and Sudan was originally on there and they got removed. So if you Venezuela and North Korea are clearly red herrings and they are used to distract from the ultimate concern that this is about Muslim majority.

Aaron Freiwald: [00:41:59.42] Why do you say that. Is that because we don't know immigration from those two countries.

Sahar Aziz: [00:42:03.54] Right. With North Korea. The North Korean government doesn't allow anyone to leave. So it's a non issue. It's a nonstarter with Venezuela the restrictions were only limited to the government high level government officials and diplomats and their families on certain types of immigration visas. So it was a very, very tiny number of people or pool of people. And clearly again was just used as a means to add to the list to say 'Oh look we've got two countries that are not Muslim majority' and with regard to the other countries there had been some steps that were done by immigrant advocates and those in other than the amicus brief showing that none of these countries had individuals or there was a record to show that individuals from these countries had actually committed terrorist attacks on U.S. soil. And so even if you looked at the cases the prosecution and the record of antiterrorism and counterterrorism investigations prosecutions that were public that there was with the exception...well there was no one who was a foreigner who had committed that. Committed terrorist acts on the U.S. the few who may have had origins from those countries were actually American citizens or longtime permanent residents who had been living here for a very long time and had never gone back to their nation of origin. So there was... there were no facts to show that this was... there was really a threat. The only other basis that could be justifiable and is more consistent with what you saw was Carter and Reagan is if you were to focus perhaps for example on key countries like Iran because that is where you have a country that the administration has declared especially this Trump administration as kind of an enemy of the United States. And so when you have these foreign affairs disputes or foreign relations disputes that tends to be more consistently a basis for kind of collectively punishing all their citizens than has been done in the past. That doesn't mean that I necessarily agree with it or others agree with it but it is there's at least a precedent for that. But many of these other countries like Yemen, Libya, Syria we actually are involved in those conflicts. I mean we are... we funded many of the militias through the proxy war in Syria. And so I think it's a little ironic if not outright hypocritical for us as a country to contribute to the violence that produces the refugees and the migrant crisis and then say well you're not allowed to come in simply by virtue of your nationality not an individualized assessment for these individuals of you in fact we have evidence that you are in fact associated with terrorism or that you are a national security threat. So I think it's a really hard case to make on national security grounds with the exception of perhaps Iran because of the Foreign Relations and the only reason there aren't more countries on here is for two reasons. One is the mitigation or the limitation on Trumps animus is his avarice for making money from Middle East regimes. And so he couldn't put Saudi Arabia on because he just sold them 10 billion dollars in U.S. military equipment and he can't put Egypt on because he needs the Egyptians to assist with security and to work with the Israelis. And he also there's a lot of military arms trade so there but I think it's Bannon in particular has left his own devices. And Trump I think would go along if there wasn't a cost to it from a military sales perspective. I think he would add as many Muslim majority countries as he could. So it's really only geopolitics and real politics that constrain Trump as opposed to bonafide national security threats.

Aaron Freiwald: [00:46:25.83] Well and you know we've really gone into some detail about this particular initiative this immigration ban but you know I asked Is it possible to put aside or imagine a world without the rhetoric and of course you can't because the rhetoric is out there and he isn't just talking about Muslims from these countries when he's talking in front of big crowds and political rallies and he's not just talking about Islam as practiced by you know this person or that person he's making much more sweeping rhetorical statements about Islam and about Muslims. So I mean you know you've talked about... you brought up the word racialization of Muslims and Islamophobia beyond this particular court case. I mean what are some of the ways that's... that you're seeing that being expressed today in other settings?

Sahar Aziz: [00:47:28.87] So in my forthcoming book which is tentatively titled "The Muslim Manic: The Retaliation of Religion in the Post 9/11 Era" I talk about the way in which religious identity specifically Muslim identity has become treated like a race rather than a religion. And the reason I think that's important is because in law and in society in American society we believe that we privilege religious freedom and religious rights. In contrast to our history of racial discrimination and some Americans believe that we are not a post-racial. And that in fact racism is an anomaly and it's something that is fringe. And so we tend to be more accepting of racial discrimination than we are of religious persecution which so I'm kind of challenging both in saying no actually we still do have a racism problem and in many ways Trump has exposed that because you are correct in his rhetoric is not just Islamophobic. It's also xenophobic and anti-immigrant which tends to have an anti-Latino and Hispanic implication. And he's also made many statements that I think are clearly anti-black and anti-African-American. So Muslims now instead of being treated like a religious minority that warrant protection and that are supposed to be shielded from persecution they're pushed into being a race. And once they're pushed into being a race it's almost as if they're fair game for discrimination because that's what we've done all along. And as a society and as a country and I think that's one of the reasons why people who self identify leaders and members of the public who self identify as devout Christians or devout in their particular faith and are strong believers in religious freedom don't see a contradiction behind between those beliefs and their anti-Muslim beliefs because they want to racialize Muslims. What you do and how it manifests itself is they are now terrorists. They're violent. They're a threat to society their religion their so-called religion Islam becomes recast and reframed as a violent political ideology. So if you can take Islam out of the realm of religion and take Muslims out of the realm of religious minority and put them into a political ideology and which then treats them as a race then you can be as anti-Muslim, Islamophobic as you want. And it's not anti-American. Quite the opposite. It's patriotic.

Aaron Freiwald: [00:50:24.66] Right. Well or you know you make it all fuzzy so that you don't know which also serves to increase people's fear. You know if you knew which were the radicals and which were the terrorists and which were the ones really out to do you harm it wouldn't be such a big problem. But by creating a sense that we don't know what you're also doing and that is making people afraid of all of the other whoever the other is. All Muslims because we just don't know.

Sahar Aziz: [00:51:03.79] Well it's this presumption of guilt as opposed to a presumption of innocence.

Aaron Freiwald: [00:51:07.71] Right.

Sahar Aziz: [00:51:08.72] And that is the difference between being experiencing that minority status that versus the majority status with the privileges that you are presumed to be innocent and met every individual responsible for their own actions as opposed to each individual is responsible for all the actions of the group that they may self identify whether be imputed as is their identity whether Sikhs or Hindus or even Latinos were mistaken for being Muslim because anyone who quote unquote looks Arab is assumed to be Muslim which is false. In fact I believe the numbers are something around 60 percent of Arabs in the United States are actually Christian. So the majority of Arabs are Christian.

Aaron Freiwald: [00:51:53.82] Right.

Sahar Aziz: [00:51:54.71] So yeah, there are some very broad implications. Now how does that then manifest itself. There are some areas where we see it the most egregious manifestations one is in the employment realm. And some of it is provable some of it is not. But we do see quite a bit of discrimination in employment based on people's either actual or presumed identity or association with Muslim, with Islam and Muslim identity is. So it could be a hostile work environment where those stereotypes are then reiterated through rhetoric and through action it could be through failure to promote being fired or not even being hired in the first place which is very difficult to prove. We also see it in school bullying which has been quite under researched. But we hear it anecdotally those of us who work with these communities that children are being bullied at alarming rates. Muslim children both by their peers and even by their teachers. And there's a lot of ignorance and insensitivity about what happened for example abroad and the way that it is taught such that the students. The idea that Islam and Muslims and Arabs are inherently violent is then reinforced in the curriculum. And so there's a lot of work that needs to be done in terms of training teachers in how they talk about that region and their religion and just anything that relates to Muslims, Arabs, South Asians in general. But also in ensuring that the anti-bullying efforts include with a purpose anti-Muslim bully because that has become its own form of bullying. We also see hate crimes are a serious problem. They tend to be worse. That kind of goes up and down. It's hard to know the numbers because of reporting oftentimes those who are most vulnerable to being subjected to hate crimes are the least likely to report because they're part of vulnerable communities whether they're immigrants or whether they're minorities who don't think police will believe them or they don't trust the police because they see them as people who also perpetuate those stereotypes. But we see women who wear headscarves being attacked especially if there is a high profile terrorist attack that happens in a western country whether it's in Europe or in the United States. But we do see the reporting goes up there and we also see it in mosques. So we have mosques experiencing down realizations across the country and again it tends to peak or at least the reporting peaks when there is a high profile terrorist incident. And also we see zoning rules being changed or interpreted in ways to deny mosques from being built or from expanding based on pre-textual purposes that there'll be traffic, that there'll be noise and sometimes more explicitly that we don't want terrorists in our midst because we believe that mosques are terrorist factories. And so there's yeah there's a lot of work to be done at the grassroots level that I think public policymakers at the local you know at the city level the state level could focus on to ensure that their communities are less prejudiced because these are things that we don't necessarily know about unless we hear the voices of the most directly impacted. And again when you're dealing with 6 to 8 million people in a country of over 330 million they're a tiny, tiny minority and they are disproportionately discriminated against based on their numbers and disproportionately covered in the news through that terrorist slant but then disproportionately underserved in terms of dealing with discrimination and hate crime.

Aaron Freiwald: [00:55:41.57] Well I think you're absolutely right in all these areas, we've talked about hate crimes on this podcast before and you know we're not going to ever eliminate hatred, we're never going to eliminate people who are inclined to think these thoughts and post these ideas on social media and even in some cases commit acts of heinous violence we saw this in the Pittsburgh synagogue shooting and then and a great a general rise in hate crimes at least those reported as you point out most of those against Muslims in our country and Jews in our country to this day. So it's the answer at least has to be hearing those voices not that this erases all of you know the problems or makes it all better but having to newly elected members of the House of Representatives who are Muslim Americans maybe that at least creates some way in which some voices will get heard more prominently on some of these issues in the coming months and years. I don't know but certainly. Yeah go ahead please.

Sahar Aziz: [00:56:58.43] No I think that the silver lining in the last 18 years is that the new generation of Muslim Americans most of whom or an increasing number of whom were born here at least raised nearly all their life here are being very American and fighting back.

Aaron Freiwald: [00:57:13.25] Yeah.

Sahar Aziz: [00:57:13.61] And rather than kind of sitting in the corner and whining or trying to stay on the radar many of those who came of age after 9/11 the longer these communities have used the oppression as a motivator to get more engaged in civic life and political life. And I think that is the good news. And they went to the airports and they protested and they were named plaintiffs in the lawsuit.

Aaron Freiwald: [00:57:41.9] And ran for Congress.

Sahar Aziz: [00:57:42.95] And ran for Congress and won as opposed to their parents who had been raised abroad who admittedly you know that many of them know all of them kind of tried to stay below the radar and thought that it would pass and then the new generation realized no that that's not what I was raised to believe in school. So that the American public education system is doing something right in that regard in terms of teaching us what our ideals are. I think we just have an obligation as citizens to act on those ideals and not just read them and believe them in the abstract because if there's one thing we've learned under this current administration that even in the last 18 years and what I study is that democracy it doesn't just exist by itself. The people have to every day engage in that act. Equality isn't a guarantee. Freedom isn't a guarantee and non-discrimination isn't a guarantee. And if it's simply and we know this as lawyers just because it's on paper just because it's in the books doesn't mean it's in practice and it's really up to us. Whether as lawyers or not lawyers to be the change we seek in making the society that we want to create not withstanding our checkered history, notwithstanding the history of white supremacy or slavery or you know all of the systemic racism and oppression that we've experienced in many other nations with experience in different ways. But I think we don't have to let that bind our future.

Aaron Freiwald: [00:59:14.74] Well and one of the voices we need to hear is yours Professor Sahar Aziz and I'm so grateful that you shared it with us today on Good Law Bad Law it has been a great conversation and an important one and I appreciate your time and all of your thoughts and views on these subjects very very much so thank you very much for being on our podcast. Appreciate it.